United States Court of Appeals,
Eleventh Circuit.
No. 94-8079.
UNITED STATES of America, Plaintiff-Appellee,
v.
Tommy Hugh COLE, Defendant-Appellant.
Aug. 11, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-CR-269-1), J. Owen Forester, Judge.
Before BIRCH and BARKETT, Circuit Judges, and SMITH*, Senior
Circuit Judge.
PER CURIAM:
Tommy Cole was convicted of knowingly receiving a videotape of
minors engaging in sexually explicit conduct in violation of 18
U.S.C. § 2252(a)(2). He appeals his conviction, challenging the
constitutionality of the statute and the sufficiency of the
evidence. He also appeals his sentence, arguing that the district
court erred in enhancing his sentence pursuant to U.S.S.G. §
2G2.2(b)(1). We affirm his conviction without discussion,
see 11th
Cir. Rule 36-1, but vacate his sentence and remand for
resentencing.
The Sentencing Guidelines provide for a two-level increase in
offense level if the sexually explicit "material" involved a minor
who is either "prepubescent" or "under the age of twelve years."
U.S.S.G. § 2G2.2(b)(1). In United States v. Saylor, 959 F.2d 198
(11th Cir.1992), this court determined that a section 2G2.2(b)(1)
*
Honorable Edward S. Smith, Senior U.S. Circuit Judge for
the Federal Circuit, sitting by designation.
enhancement is appropriate only if the government shows that the
defendant intended to receive materials involving such a minor.
"The Government's contention that the defendant's state of mind is
irrelevant would permit the Government to obtain enhancement by
delivering material with the depiction necessary for enhancement to
a person who did not intend to receive it and who had clearly
ordered videotapes of older children." Saylor, 959 F.2d at 200.
The sentencing court found that Cole intended to receive
sexually explicit tapes involving minors under the age of twelve,
expressly declining to consider whether he intended to receive
tapes involving prepubescent minors.1 The relevant sentencing
evidence showed that Cole received an order form offering "videos
contain[ing] boys and girls aged 6 to 15 engaged in sex action."
The form requested a second choice, as well as a first choice, in
the event the first choice was unavailable. Cole chose a video of
twelve-, thirteen- and fourteen-year-olds as his first choice and
a video of a fourteen-year-old as his second choice, and enclosed
$35.00—the price of one video—with the order form. With the order
form, Cole also included a letter stating, "I do wish to purchase
all of your tapes." Finally, the evidence showed that although
Cole received his first choice, it actually involved a minor under
the age of twelve.
The sentencing court, in finding that Cole intended to
receive a tape involving a minor under the age of twelve, stated
1
The court declined to consider Cole's intent to receive
material involving a prepubescent minor, as opposed to a minor
under the age of 12, out of concern that the use of the word
"prepubescent" in section 2G2.2(b)(1) was unconstitutionally
vague.
that
[i]t is questionable as to what [Cole] really wants. But with
the additional statement ["I do wish to purchase all of your
tapes"], I think that there is evidence that he is in the
market for the kind of pornography that would necessarily
exploit the very young, the very immature, and that entitles
him to two levels in my judgment.
We review the court's finding for clear error. United States v.
Hall, 46 F.3d 62, 63 (11th Cir.1995).
Based on the record, we conclude that the sentencing court
clearly erred in finding that Cole, in committing his offense,
intended to receive tapes of minors under the age of twelve years.
Cole specifically ordered a tape of twelve- to fourteen-year-olds
and sent only enough money to cover the one tape. Cf. Saylor, 959
F.2d at 199-200. His receipt of the tape constituted the offense
for which he was convicted. The court erred by enhancing Cole's
sentence based on the statement of future intention found in the
letter Cole mailed with the order form.
Having found clear error in the sentencing court's finding, we
vacate Cole's sentence and remand this case for resentencing in a
manner consistent with this opinion.
AFFIRMED in part; VACATED in part; and REMANDED.